By Mohammed Tahir Hakim*
The Hijab debate before the Supreme Court has again brought into the spotlight the tenets of the religion of Islam and its practice by its followers. It is seen that the Court wants further clarifications on the issue and the submissions made by the petitioners. Therefore, the present note is an endeavour to explain the same apropos to the queries made by the Court.
It is undeniable that Muslims are divided into several sects/subsects/groups, each claiming to be following the true Islam, on the difference in interpretation and understanding of the basic sources of faith, belief and practice of Islam. However, notwithstanding the same, for all Muslims, the belief in Allah, the Quran (the revealed word of Allah), the Prophets and the last Prophet Muhammad (Peace Be Upon Him) and the Hadith (the sayings and precepts of the last Prophet (PBUH)) are articles of faith and belief. Therefore, disbelief in any of the same is a sin of disbelief/Kufr and undoubtedly liable to punishments in the Hereafter.
Theologically and judicially accepted also, the four basic sources of Islam are the (i) Quran, (ii) the Hadith, (iii) the Ijma (the consensus/concurrence of the community) and (iv) the Qiyas (the analogical deductions in the absence of the any of the above sources but based upon the said sources). In legal parlance, Shariah(Shariah) is understood to be restricted to Islamic law only. However, theologically, Shariah is “the ordained way” that a believer is mandated to follow to attain success in this life and also the Hereafter.
The meaning of Shariah linguistically is as follows:
“A water source, which is the source to which people who want to drink come, so they drink from it and fill their buckets, and perhaps bring their animals to drink from it as well.”
The theological meaning of Shariah is:
“The entire religion (Islam), which Allah has chosen for His slaves to bring them forth from darkness into the light. It is what Allah has prescribed for them and what Allah has explained to them of commands and prohibitions, halaal (permitted) and haram (prohibited).”
The meaning of Shariah as available in Advanced Law Lexicon 5th edition by P Ramanatha Aiyar is as follows:
“Islamic law; besides positive law, it includes moral and ethical values and the jurisprudential process itself.
The Quran uses the term Shariah in Surah Al-Jaathiyah 45, Ayah 18. The meaning of Shariah, as per the Quran, is as follows:
“Then We put you, [O Muhammad], on an ordained way [sharee‘ah] concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know”. (Translation from Saheeh International)
Therefore, for the believer of Islam, Shariah is the complete way of life as ordained by the Quran, as revealed by Allah and as put into practice by the last Prophet Muhammad (PBUH), recorded in Ahadith, the Ijma and the Qiyas. Therefore, for the believer, Shariah is not just Islamic laws, but the all-encompassing way of life applicable to all belief/s and action/s to profess and practice religion.
Further, in the said context, the first recorded Hadith in Sahih Muslim, in the Chapter Imaan/Faith, is most relevant. It is pertinent to mention that for Muslims, after Quran, Sahih Bukhari and Sahih Muslim are the most revered and authentic books. The said Hadith records the five recognized and popular pillars of Islam and the ingredients of the first pillar, Imaan/Faith. The extracted portion of the said Hadith is as follows:
Sahih Muslim Book 1, Number 0001:
….He further said: My father, Umar ibn al-Khattab, told me: One day we were sitting in the company of Allah’s Apostle (peace be upon him) when there appeared before us a man dressed in pure white clothes, his hair extraordinarily black. There were no signs of travel on him. None amongst us recognized him. At last, he sat with the Apostle (peace be upon him). He knelt before him, placed his palms on his thighs and said: Muhammad, inform me about al-Islam. The Messenger of Allah (peace be upon him) said: Al-Islam implies that you testify that there is no god but Allah and that Muhammad is the messenger of Allah (faith/Iman), and you establish prayer (Namaz), pay Zakat (Zakat), observe the fast of Ramadan (Roza), and perform pilgrimage to the (House) if you are solvent enough (to bear the expense of) the journey (Haj). He (the inquirer) said: You have told the truth. He (Umar ibn al-Khattab) said: It amazed us that he would put the question and then verify the truth himself. He (the inquirer) said: Inform me about Iman (faith). He (the Holy Prophet) replied: That you affirm your faith in Allah, in His angels, in His Books, in His Apostles, in the Day of Judgment, and you affirm your faith in the Divine Decree about good and evil. He (the inquirer) said: You have told the truth. He (the inquirer) again said: Inform me about al-Ihsan (performance of good deeds). He (the Holy Prophet) said: That you worship Allah as if you are seeing Him, for though you don’t see Him, He, verily, sees you….
Therefore, following the above Hadith, the believer recognises the five pillars of Islam as being fundamental i.e. the faith/Iman, the Namaz, Zakat, Roza and Haj and to have complete faith/Iman, a believer needs to have faith in Allah, His Angels, His Prophets, in the Day of Judgement and the Divine Decree/Qadr. Therefore, the ingredients of faith being in Allah, the Prophet (PBUH), and the day of the Judgement is significant for the present purpose.
The first source of Islamic Shariah, the Quran, records the following verses on covering by women.
Surah (Chapter) Nur, Aayat (Verse) 31,
31. And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.
Surah Ahzab, Aayat 59,
59. O Prophet, tell your wives, daughters, and the believers’ women to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused. And ever is Allah Forgiving and Merciful.
Both the aforesaid Verses of the Quran record Allah’s injunctions for covering believing women, thereby the first ingredient of faith in Allah, i.e. His Quran is satisfied.
The second source of Islamic Shareeah, Ahadith, contains the following Hadith on covering by women explaining the aforementioned Verses of the Quran.
Sahih Bukhari, Hadith No.4758
Narrated “Aishah’: May Allah bestow His Mercy on the early emigrant women. When Allah revealed:
“and to draw their veils over there Juyubuhinna (i.e. their bodies, faces, necks and bosoms)…” (V.24:31) they tore their Muruts (woollen dresses or waist bindings clothes or aprons etc.) and covered their heads and faces with those torn Muruts.
Sahih Bukhari, Hadith No.4759
Narrated Safiyya bint Shaiba: Aishah used to say: When (the verse) …“and to draw their veils over there Juyubuhinna (i.e. their bodies, faces, necks and bosoms)…” (V.24:31) was revealed, (the ladies) cut waist sheets from margins and covered their heads and faces with those cut pieces of cloth”.
Therefore, the aforesaid Verses are explained by the Prophet (PBUH) and were implemented by the Muslims as such in the lifetime of the Prophet (PBUH), thereby the second ingredient of the faith, i.e. belief in the Prophet (PBUH) by following his way is also satisfied.
Then comes the third ingredient of faith, the belief/faith in the day of Judgement and being answerable for the sins in this life. The same is demonstrated by accepting, believing and putting into action the commandments of Allah and the Hadith of the Prophet (PBUH). Since if the actions are not in accordance with the same, then such actions are sinful, and on the day of the Judgement, the same will result in punishment. Therefore, such an action is considered to be sinful in Islamic theology. Moreover, the denial of the belief therein is also considered to be disbelief(Kufr).
In view of the aforesaid, believing Muslim women/girls wear Hijab out of the said conviction for their spiritual wellbeing and fearing punishment on the day of Judgement due to not following the commandments of Allah and His last Prophet (PBUH). Therefore, to compel a believing Muslim woman/girl not to wear Hijab is forcing her to commit disbelief (kufr) and is a serious violation of her fundamental rights protected in part III of the constitution.
The Hijab fulfils all the tests required to be fulfilled for proving the essential religious practice test, being a practice based upon the religious scriptures, practiced for more than 1400 years, identification and association with Muslims and their religion Islam and non-adherence to such practice being disbelief and sinful.
At this stage, it is pertinent to mention that the mandate of the Quran and Hadith is for covering the entire body with an additional cloak (Jilbab) while in the gaze of males other than permitted. Still, in the present case, the Muslim/Girls are not asking for the same but for mere head covering, in addition to school uniform as prescribed, thereby covering their head and neck with Hijab. This reasonable accommodation is required to balance the rights of Muslim Girls to access secular education in Government or Government aided schools and not compel them to commit disbelief/Kufr.
The argument of the State is to deny secular education to Muslim Girls and force them to be relegated to education in Madrasas if they want to avoid disbelief. Such unreasonable and harsh treatment cannot be meted out, and thereby fundamental rights of Muslim Girls cannot be violated and denied.
Moreover, the belief of Muslims cannot be questioned, ridiculed and denied when the belief/s of other citizens are acknowledged and protected. If a Sikh has the right to wear a turban, if Jehovah’s witness has the right not to sing the national anthem (Bijoe Emmanuel), a Jain and Parsi have the religious right about the trust created by their community (Ratilal Panachand Gandhi) and if Hindu has a right of worship at a particular hour and in a specific manner and by the particular community (Shirur Mutt), why cannot Muslim Girls have right to wear Hijab.
Unity, equality and integrity cannot be imposed as a condition to avail the right to education, which as such is a facet of the right to life (Unnikrishnan) and the ideals of fraternity, diversity and distinct identity also, cannot be erased for the same.
*The author practices law in the High Court of Gujarat, Ahmedabad, and is a member of the All India Muslim Personal Law Board. The article was written when the arguemtns on the Hijab issue were going on in the Supreme Court. Now the arguments are over and the Supreme Court has reserved its judgement.
